The Queen v Wanakore [2007] NZCA 445 (17 October 2007)

Last Updated: 1 November 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA327/07

[2007] NZCA 445

THE QUEEN

v

WILLIAM HERANGI WANAKORE

Hearing: 15 October 2007

Court: O'Regan, Chisholm and Potter JJ

Counsel: J Hannam for Appellant
S B Edwards for Crown

Judgment: 17 October 2007 at 11 am

JUDGMENT OF THE COURT

A We grant an extension of time to appeal.

B We dismiss the appeal.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] William Wanakore was indicted on two counts of conversion of a vehicle and one count of burglary. After a trial before a judge alone, Judge D C McKegg, he was convicted of all charges. He seeks an extension of time to appeal to this Court against conviction. The grounds of the proposed appeal are that “there was insufficient evidence to warrant conviction” and that “there is a reasonable possibility [Mr Wanakore] did not commit the offence”. These appear to be directed to s 385(1)(a) of the Crimes Act 1961, which provides that this Court must allow an appeal if it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

Extension

[2] The notice of appeal was filed about two months late. Counsel for Mr Wanakore, Mr Hannam, explained that a non-conforming notice had been filed within time and the delay was caused by the need to have a new notice prepared and signed. This took some time because Mr Wanakore was moved between prisons. Ms Edwards for the Crown accepted that the Crown is not prejudiced by the delay. We are satisfied that it is appropriate in the circumstances to grant an extension of time to file the notice of appeal.

Crown case

[3] The Crown case at trial was based on circumstantial evidence. That evidence was unchallenged. The Crown’s case was that Mr Wanakore and a co-offender, Mr Rowe, had stolen a Ford Courier utility vehicle, had driven it to a retail business in an adjoining town, had burgled that retail business and, when a bystander had driven the Ford Courier away from the scene, had converted an Isuzu Bighorn from a site near to the scene of the burglary and made their escape, taking the product of the burglary (mainly cigarettes) with them.
[4] The (unchallenged) Crown evidence was as follows:

(a) The Ford Courier was stolen on 31 July or 1 August 2006 from a motor company in Eltham;

(b) There was a burglary on the night of 31 July or 1 August 2006 of Best’s Discounters in Kaponga;
(c) The Ford Courier was seen at the burglary in Kaponga by Mr Lewis, who lived near to Best’s Discounters. He was woken by the sound of breaking glass and went to the scene. In an attempt to frustrate the burglary, he drove away the Ford Courier, which had been left with its engine running, but with no key in the ignition (indicating it had been “hot wired”). Mr Lewis saw two persons involved in the burglary but could not give descriptions;
(d) The Isuzu Bighorn was stolen from a site near to the burglary. It was discovered missing at 8 am on 1 August 2006;
(e) Mr Wanakore admitted arriving at a Waitara property in the Isuzu Bighorn early in the morning of 1 August 2006 (ie the night of the burglary);
(f) Various items from the burglary, being cigarette packets and display strips, were found in the Isuzu Bighorn;
(g) Mr Wanakore was arrested in the company of Mr Rowe, who pleaded guilty to the burglary;
(h) Shoe prints were found in the burgled shop. One of these matched a shoe worn by Mr Rowe, and one matched the right shoe worn by Mr Wanakore when he was arrested by the police.
[5] The Judge summarised the Crown case in the following terms at [7] of his judgment:

[7] So the Police case is brought on circumstantial basis and it is that remnants of the burglary were located in the Isuzu connecting it to that burglary, that the accused arrived in Waitara in that vehicle in the early hours of the morning at an address in Waitara, that the accused has the same shoe as created the print at the scene of the burglary, that the Isuzu was stolen in the vicinity of the burglary and that the Courier utility was parked outside the scene of the burglary with one man inside observed initially and the other inside it, the motor was running and a clear and inescapable inference being that it was that vehicle that the two men occupied to get them to the burglary. The Courier had no key and it was manifestly clear that it had been hot wired to start it. That is a formidable case against Mr Wanakore.

Defence evidence

[6] Mr Wanakore’s defence was based on his own evidence, that of his partner (and the mother of his child) Ms Te Tau and that of Mr Rowe.
[7] Mr Wanakore accepted in evidence that he had lied to the police when he told them he knew nothing about the Isuzu. He said that he was with his partner and baby when the burglaries were committed, and was contacted by Mr Rowe in the early hours of the morning to go and sell cigarettes. He said that he merely asked the people to whom he sold the cigarettes to look after the vehicle, which he knew was stolen, as he knew the cigarettes were also stolen. He said that while this was occurring he met a person whose name he did not know, and which he did not ask, whose shoes he took a liking to, and bought them for two joints. This explained how a print, seemingly from the shoes worn by Mr Wanakore at the time of his arrest, came to have been left on the floor of Best’s Discounters.
[8] Mr Rowe’s evidence was that he had committed all the offences with another, unnamed person. He refused to name that person.
[9] Ms Te Tau gave evidence which was intended to support an alibi, but which was to the effect that there were periods during which Mr Wanakore was not with Ms Te Tau, and she was unaware where he was at those times.

The Judge’s approach

[10] The Judge rejected the evidence given by Mr Wanakore and Mr Rowe. He said that he would put that evidence to one side, and return to the rest of the evidence to see whether the Crown had proved its case beyond reasonable doubt. That was the correct approach, as Mr Hannam accepted. The Judge then concluded his judgment as follows:

[14] I return to the comments I made at the beginning concerning the circumstantial evidence which places the accused in the stolen Isuzu, the proceeds of burglary represented by the strips of material and cigarettes in packets strewn on the floor of the Isuzu and the footprint and the shoes worn by the accused. The sum effect of the circumstantial evidence satisfies me beyond reasonable doubt that it was Mr Wanakore who was present at the burglary of Bests and that he was involved in the taking of the other vehicle.

[15] The elements of the offences are not in issue. The first count charges that he dishonestly and without claim of right got in the Ford Courier utility. Well that simply means that he had no belief that the act was lawful and that he had no consent and knew he had no consent to be in the vehicle and I am satisfied that it was that vehicle that brought Mr Wanakore and his younger friend to the scene of the Best burglary.

[16] The burglary, count 2, simply means entering the building without authority and with intent to commit a crime and I am satisfied that all proposed elements have been established and similarly, on the charge of conversion, count 3, I am again satisfied that Mr Wanakore dishonestly used the Isuzu Bighorn for his own and Blake Rowe’s purpose, that is, to take themselves and their stolen goods away from the scene of the crime. That being the case, I am satisfied beyond reasonable doubt on each element, including identity, and on all three counts Mr Wanakore will be convicted.

Grounds of appeal

[11] Counsel for Mr Wanakore, Mr Hannam said that the Judge did not give consideration to other possible explanations for the matters advanced by the Crown to prove guilt, namely:

(a) Mr Wanakore had come into possession of the shoes after the burglary;

(b) Mr Wanakore had entered the vehicle after the burglary and was not responsible for its theft;
(c) Mr Wanakore had met his co-accused after the burglary, not at the burglary.
[12] He said that the Judge should have discussed these points in consideration of the circumstantial evidence. In his oral submissions, Mr Hannam suggested that the Judge should have repeated his analysis of the circumstantial evidence on which the Crown relied, and, in doing so, evaluated these possibilities.

Our analysis

[13] In our view such repetition was unnecessary. It would have been needless repetition of the very clear summary the Judge had given earlier of the Crown case, and would have added nothing to the decision. Once the Judge had rejected the evidence of Mr Wanakore and Mr Rowe (and Mr Hannam accepted that there was no proper basis for challenging the Judge’s assessment of that evidence on appeal), it was not necessary for the Judge to re-evaluate the Crown evidence in light of defence evidence which he had explicitly rejected.
[14] The Judge carefully evaluated the circumstantial case put forward by the Crown, directed himself properly as to the approach to be taken when the defence evidence was rejected, specifically addressed his mind as to whether the Crown evidence was sufficient to prove guilt beyond reasonable doubt, and reached a conclusion that it was. That was a conclusion that was clearly well founded on the evidence.

Result

[15] There is no merit in the appeal. It is dismissed.

Solicitors:
Crown Law Office, Wellington